Holier-Than-Thou Complaints about the Timing of Jack Smith's Latest Filing Are (or should be) Embarrassing

Election interference?!?!  The US Bureau of Labor Statistics released its September inflation report today, and the news is good.  According to a Washington Post news article this morning: "Inflation continued to cool in September, extending a trend of easing price increases and an improving economy ... ."  Moreover, "Thursday’s figures represent 'the best inflation outlook in the economy over the past three years,' said Joe Brusuelas, chief economist at RSM US."  But that article's headline also noted a political angle to the news: "Inflation eased slightly in September, as election nears."

Hmmm.  This news is coming "as election nears," you say?  Might one argue that the federal government's statistical agencies should not issue economic data so close to Election Day -- indeed, after early voting has already begun -- lest doing so affect the way people might vote?  Most people would say that there is nothing wrong with this at all, because these reports are issued routinely, which means that there is nothing manipulative about issuing a monthly communication on schedule.  But is it that simple?

I bring up this admittedly odd notion as a way to think about some recent tut-tutting about Special Counsel Jack Smith's decision to proceed with his case before Judge Tanya Chutkan in US District Court in Washington, DC.  Smith submitted, and Judge Chutkan accepted and then released, a 165-page filing that supplements the record in the federal case against Donald Trump regarding his actions to overturn the 2020 election.  I was not particularly surprised when the editorial board at The Post wrote an editorial with the headline: "Jack Smith has dubious timing — but a good case."  In fact, I was so unsurprised that that group of pearl-clutchers would insinuate that Smith's timing was objectionable that I was mostly happy just to see that they acknowledged that Smith has the goods on Trump.

Yesterday, however, The New York Times ran a guest op-ed from Harvard Law professor Jack Goldsmith under the Ricky Ricardo-like headline: "Jack Smith Owes Us an Explanation."  The editors at The Times even inserted a grainy closeup photo of Smith that makes him look at least "sus" if not outright villainous.  So what is the story here, and how does it compare to other government employees doing things that might affect people's votes "as the election nears"?

Readers of Dorf on Law might recall that this is not the first time that Goldsmith has scolded those who have dared to try to hold Trump accountable.  As I pointed out in a column a bit more than a year ago, The Times had given over some space to Goldsmith to attack the criminal prosecution of Trump: "The Prosecution of Trump May Have Terrible Consequences."

As I wrote back then, Goldsmith's "piece was a bizarro-world argument that Republicans will become vengeful and unhinged because of what is happening to Trump.  I repeat: 'become.'  I am not joking."  I then quoted a response to Goldsmith's column from Jonathan Chait:

Goldsmith’s op-ed is like a documentary run through the film projector backward. Jack Smith prosecuting Trump leads to Donald Trump coming to power as deranged crowds bray for the imprisonment of his opponent. He is right that the outcome from Smith’s prosecution will be terrible. But worse than the alternative? How could it be worse?

Goldsmith is now complaining that Smith is violating a nonbinding and unwritten Justice Department "practice" that calls for "delaying overt investigative steps or disclosures that could impact an election."  Given that he acknowledges that Smith did not violate any laws or even rules, Goldsmith goes back to the well for a bucketful of smug piety.  The problem is apparently the same as it was last year: Pursuing the prosecution of Trump now will upset his supporters, who will suspect that Smith's actions were politically motivated.  Smith must surely stand down!  For good measure, Goldsmith says that both President Biden and Vice President Harris have similarly brought disrepute on what we are to believe would otherwise be an uncontroversial prosecution.

The problems here are legion, but I will focus on only a few.  The most obvious issue is that Goldsmith would have us believe that a decision by Smith not to proceed would be apolitical.

Goldsmith writes that "[t]his event is the latest of many examples of Biden administration officials paying insufficient public attention to executive branch rules that are designed to ensure that prosecutions are, in appearance and reality, conducted fairly and apolitically."  Everything in the piece revolves around appearances and not reality, which is fair enough (or it can be).  But what is unfair, indeed laughable, is the idea that any supposed appearance of political taint would be any different if Smith had made a different decision.

Goldsmith intones: "It is more vital in this context than ever before for the executive branch to take scrupulous care to assure the public that the prosecutions are conducted in compliance with pertinent rules.  On this score, Mr. Smith has failed."  Again, however, there is no such pertinent "rule," and in fact, Goldsmith admits that the relevant Inspector General has found that any potentially relevant departmental guidance "has an uncertain scope" (in Goldsmith's words).

Goldsmith says that DOJ "could have asked the judge to set the filing date after the election without affecting the prosecution."  That is trivially true in the sense that the department could have made such a request, but it is untrue if the argument is that further delay is meaningless.  I will explain below why that latter supposition is wrong.

In any event, DOJ decided to move forward now, and Goldsmith warns that "because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy."  We are, then, in a dangerous area because ... uh ... because the department allowed a Special Prosecutor to do something that would set off the spidey senses of Trump's supporters.

But wait.  It is supposedly worse than that, because Goldsmith is not merely saying that it was foreseeable that Smith's filing at this time would make Trump supporters suspicious.  He makes the leap of saying that he cannot "understand any reason to go forward this close to the election other than to influence it."  Let us be clear about the logical steps that lead to that explosive accusation: (1) Smith could have delayed; (2) Smith should have known ("it was foreseeable") that many people would be suspicious if he did not delay; therefore (3) Smith's (and DOJ's) reason for doing this was to influence the election.  No other reasons could possibly explain this.

And what would the other half of the country think if DOJ had said that it was going to wait until after the election?  Most importantly, the IG's report that Goldsmith cites regarding DOJ practices around elections includes this from a 2016 memorandum (which was issued by then-AG Loretta Lynch):

Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.

"[P]olitics must play no role."  That does not mean that DOJ must refuse to take actions near an election.  It means that prosecutors should not take politics into account when making decisions.  Prosecutors are not supposed to "select the timing" of their actions "for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party."  Not just one side, any candidate or party.

As noted above, Goldsmith baldly asserts that Smith took his recent action "to influence" the election, which in this context means "to hurt Trump and help Democrats."  That is a rather serious -- and wholly unsubstantiated -- charge, amounting to the worst kind of innuendo.  More to the point, however, Goldsmith is saying bluntly that Smith should have consciously chosen not to move forward with the case specifically because doing so could be seen as hurting Trump.  That is, Smith was supposed to "select the timing" of his actions with the election in mind, which would give Trump an advantage by having the latest evidence against him deliberately remain hidden.

The public's right to know seems not to matter to Goldsmith, so it is perhaps fitting that he also cannot find a reason for a prosecutor to move forward with a case.  Maybe the words "speedy trial" mean nothing to some people, Goldsmith included.  Having built up some momentum, he offers this:

The need for an explanation is heightened because this is not the first time Mr. Smith has appeared to disregard relevant department rules. In December 2023 and February 2024, he urged the Supreme Court to hear Mr. Trump’s immunity claim on an expedited basis because of the “imperative public importance” of trying Mr. Trump as soon as possible. Mr. Smith never explained the need for speed.

Yet we never learn what the "relevant department rules" are that Smith supposedly violated when he asked the Supreme Court to recognize that because it would inevitably rule on the immunity question, it should do so as soon as possible.  Smith's requests were entirely proper, asking the Court to expedite review of the immunity question well in advance of the election.  If the Court had agreed to do so and had ruled against Trump on immunity (as it should have), we could already have had a trial on the merits.  And Trump could have won that trial, which would have been good for him.  (Would that have been election interference?)  But importantly, the interest in a speedy trial is not only a serious matter for defendants but also for "the people" in whose name trials are conducted.

So Goldsmith's concern in late 2023 and early 2024 was that Smith had no good reason to ask the Court to move forward; and his concern now is that Smith had no good reason to move forward after the Supremes delayed the proceedings well into the election year.  Smith, I suppose, should have simply waited and then waited some more.  Because waiting would have made him seem, I guess, less like a prosecutor.

Goldsmith even partially quotes the "select the timing" language that I cited in full above, but he takes it to his happy place: "Mr. Smith, at a minimum, created a strong appearance of impropriety without any explanation in a context in which public confidence in the integrity of his decisions is vital."  That supposed appearance of impropriety, however, could only be there if Smith had done anything that could reasonably be called improper.  Yet Smith violated no laws and simply did his job.

Goldsmith's argument amounts to saying that a candidate under investigation and indictment should receive the benefit of having his entire case put on pause because he is a candidate.  That, of course, is exactly what Trump was hoping would happen when he declared his candidacy almost two years ago.  That Smith did not give Trump what he wanted is not a sign of impropriety unless "filing evidence that supports the indictment" is improper.

What about the fact that the Supreme Court itself is the reason that these things are even happening so close to the election?  Goldsmith has an answer to that as well, and it is as weak as the rest of his piece: "These considerations are irrelevant to Mr. Smith’s duty to comply (and appear to comply) with the relevant rules."  Right.  That the Supreme Court acted when it did should not stop a prosecutor from moving forward with his case -- especially when his current actions are in direct response to complications that the Court's insane ruling created -- unless the prosecutor is required to stop.  But Smith is not required to stop.

Goldsmith wants to say that Smith must "appear to comply" with vague rules.  Goldsmith then warns darkly that it appears that Smith is in the wrong.  If that is the standard, however, then there is nothing that a prosecutor could ever do in pursuing a case, because someone (read: Trump's supporters, and Goldsmith) will say that he has an evil motive whenever he does something to pursue the case.

This is, in other words, not in fact an argument about "acting so close to the election," because even in a non-election period (do those exist?), Goldsmith-like people will say that there is an appearance of impropriety whenever a Democratic President is ultimately in charge of DOJ.  The holy grail of seeming apolitical will always be an excuse for inaction.

I will not even bother to go through the remainder of Goldsmith's column, most of which is a series of slippery claims that Biden and Harris have "crossed the line" in various ways.  It is all rather tiresome, although it does provide readers with additional reason to believe that Goldsmith's motives are partisan rather than his holier-than-thou call to "maintain the public trust in the department’s ability to do its job free of political influence" (quoting former AG Eric Holder, which is especially rich).

So what about those economic statistics that I mentioned at the beginning of this column?  The relevant agencies are not part of the Justice Department, but as we have already established, Goldsmith's argument is not about DOJ's rules but about supposed violations of election-related neutrality.  The Bureau of Labor Statistics, like Jack Smith, could have said that it would not move forward on its usual schedule because anything they do might favor Harris and harm Trump.  But the stats nerds pressed forward, and everyone accepted that decision as utterly unremarkable.  Similarly, Smith did what he would have done at any other time precisely because not to do so would have been an election-related decision.

Note, by the way, that Goldsmith's argument in no way hinges on any criminal/civil distinction or even a distinction between court-related actions and other types of government activity.  It is all about whether an executive department is doing something that could appear to be harmful to one candidate or party.  In the end, Goldsmith is merely saying that "this could've waited."  But that is not the law, the rule, or the standard.

Smith owes us no explanation.  I have no idea what Goldsmith thinks he owes us, but it is evidently not a persuasive argument.  Claiming that there is an appearance of impropriety by saying that there is an appearance of impropriety is certainly novel.  It is also absurd.